Dr. Calvin Day Case is Doctors' Duke La Crosse Case

(See the update to Dr. Day’s Texas Medical Board case at the end of this article)

Dr. Calvin Day was falsely accused of sexual assault by a woman who has now all but admitted that she made it all up.  This horrific debacle not only cost Dr. Day six years of his practice career but it also caused the suicide of Dr. Day's son Zac.

The Duke La Crosse case and the Dr. Calvin Day Case have many similarities; these include a false allegation of sexual assault, misconduct of governmental officials, and unwarranted humiliation and vilification by the press.  These elements in turn evoked a mob-like rush to judgement and the presumption of guilt prior to full adjudication. It is unfortunate that in the Dr. Calvin Day case corrections did not occur until after Dr. Day’s son committed suicide and after Dr. Day had lost six years of his medical practice livelihood.

The Dr. Calvin Day case had the added twist of a highly televised “perp walk” that helped the Detective in charge of the case broadcast her narrative to a wide audience, at the expense of the truth.  All of the allegations  put out during the “perp walk” have now been disproven, and worse, it turns out that  a number of legal experts have declared the “perp walk” to be nothing more than a public shaming event[1]^-[2]. According to a July 28, 2000 ruling by the U.S. Court of Appeals in New York City (2nd Cir.), staged "perp walks", such as the one that Dr. Day experienced, violate the Fourth Amendment rights of suspects to be free from unreasonable searches and seizures[3].

It is a great injustice to "perp-walk" any man accused of sexual impropriety who has wealth or a position of power, because it invites opportunists to file false claims without any concern of perjury because it is all "he said, she said" testimony. Hopefully, calling public attention to the mis-steps and the governmental misconduct in the Dr. Calvin Day case will prevent other physicians from having to go through the same ordeal.

CASE HIGHLIGHTS AND COMMENTARY

In 2006 three members of the Duke University men's lacrosse team were falsely accused of rape. The La Crosse players were eventually found to be innocent of the allegations but not before being vilified and humiliated by the press. Ultimately the lead prosecutor, Durham County District Attorney Mike Nifong resigned and he was subsequently disbarred.

Similarly, Dr. Day was falsely accused of sexual assault of a patient and Dr. Day too was vilified and humiliated by the press.

Ultimately Dr. Day’s accuser, referred to as “Patient One” all but recanted by submitting an affidavit invoking her Fifth Amendment Right against self-incrimination in response to 69 separate allegations of perjury relative to Dr. Day’s case.  In civil law, as opposed to criminal law, taking the Fifth is tantamount to an answer of yes to each question. Patient One's Affidavit is basically an admission of guilt.

In addition, over 70 subpoena returns and Pl reports indicate that Patient One had a pattern of behavior consistent with someone who would fabricate a sexual assault charge. There were three separate instances at three separate restaurants where she claimed that she broke her tooth on a “rock in the food” and two instances of “slip trip or fall” type insurance claims. Other findings appear to indicate theft by insurance fraud, theft by check, theft by forgery , theft by credit card, theft by shoplifting , violation of real estate ethical guidelines for financial benefit, a pattern of developing relationships with married professional men for financial gain (including at least two physicians), receiving unemployment benefits while working , obtaining prescriptions from physicians by developing a personal relationship with them, seven prior bodily injury claims, psychiatric care predating her allegation, using an elderly man to file a false affidavit for her benefit, and avoidance of service.

As in the Duke La Crosse case, Dr. Day’s prosecutors in the district attorney’s office were found by the presiding judge to have engaged in prosecutorial misconduct.

In addition to the misconduct by the district attorney’s office, the detective in charge of the Patient One complaint also engaged in misconduct because she swore out an affidavit stating that Patient One had correctly identified Dr. Day’s genitalia when, in fact, this was not true. The detective then used this false affidavit to obtain an arrest warrant which was what she then used to stage the “perp walk” to purposefully solicit other complainants; the detective was recorded as saying “And you know, if there’s a bunch of people telling similar stories, it makes it more believable that this really happened.” Other evidence appears to indicate that the detective had a personal relationship with Patient One.

The arresting officers came to Dr. Day’s office and physically pulled him from an exam room while Dr. Day was examining a patient.  They handcuffed him in front of other patients.  All of this occurred despite Dr. Day’s attorney having sent a letter in advance stating that, if Dr. Day were to be arrested, that Dr. Day would turn himself in. The officers took him to the downtown police station and held him there for approximately one hour until camerapersons from all four local television news stations were in place.  One of the officers asked if we were going out the back way. The detective said "NO" and pushed an elevator button. When the elevator doors opened, the blinding lights of television cameras shocked him. 

This was the "perp-walk" on 1.27.11, as seen by approximately 900,000 television viewers (according to Nielsen). Dr. Day was shown in handcuffs with on-camera solicitations by police for "other women" to file complaints against him, even though he had been complaint-free throughout his entire 27 year career. Dr. Day cared for 40,000 patients, (20,000 of which were women) and conducted approximately 50,000 full body skin cancer screening exams that included inspection of breasts and genitalia-all without complaint.

The enormous number of exams over time, created a pool of people who knew, and knew of Dr. Day.  When coupled with public exposure to an audience of approximately 900,000 people, the negative images of him being paraded in handcuffs, and the on-camera solicitations portraying him as being guilty, opened him to false claims.

To "perp-walk" any man who is accused of sexual impropriety who has wealth or position of power, invites opportunists to come forward without any concern of perjury because it is all almost by definition "he said, she said" testimony. Doctors are particularly vulnerable to these types of false claims due to the nature of their work (i.e., close proximity to patients in various stages of undress).

Unsurprisingly, following Dr. Day’s “perp walk”, former patients and former employees filed sexual impropriety type complaints against him, yet the following general considerations seriously undermine their credibility:

1. All four medical board patient complainants who surfaced after the “perp walk” returned to see Dr. Day for professional care on a date after the allegation. The medical records of Patients Three, Four, and Five document their return visits to see Dr. Day, and Patient Two stated in multiple testimonies that she returned to see Dr. Day after the alleged molestation but ultimately she confessed that she could not remember the date of the allegation; her medical record shows nine documented visits to see Dr. Day.
2. All five of these secondary complaints came on the heels of a huge media event surrounding Dr. Day’s arrest and all of them were years to decades old. These complaints did not trickle in over the years as would have been expected if they were true.
3. Prior to Patient One and the “perp walk”, Dr. Day had practiced complaint free for 27 years; there was not a single complaint lodged to any official authority concerning sexual impropriety during those 27 years despite having cared for 20,000 women, having employed 376 women, and having performed some 50,000 full body skin cancer screening exams that included inspection of the breasts, anus, and genitalia.
4. With five medical board patient complaints out of 20,000 female patients, this is a false positive complaint rate of 0.00025. Dr. Day’s practice was 16 times larger than the average family physician and yet this rate is vanishingly small, as one would expect in a practice with high standards.

It’s clear that these secondary complainants were manufactured by the circumstances of

1. having a staged media event portraying him as a wealthy doctor who was guilty from the outset by parading him in handcuffs before 900,000 television viewers with on-camera solicitations for other women to come forward at a time when there were no other complaints in the preceding 27 years, and
2. having an abnormally high number of “at risk” events because Dr. Day had
   1. 16 times the number of patients  as the average family physician,
   2. performed some 50,000 full body skin cancer screening exams that included inspection of the breasts, anus, and genitalia, and
   3. employed 376 women during Dr. Day’s 27 year practice career.

Knowing the actual facts and circumstances graphically illustrates why it is a great injustice indeed to tell someone who is unfamiliar with Dr. Day’s case "as a result of the initial charges, various other women came forward and made allegations against Dr. Day..."

Of the innumerable rebuttals specific to each complainants’ allegations, the major rebuttals include the following:

• Patient One is not credible because 1) she all but recanted previous testimony by submitting an affidavit invoking her Fifth Amendment Right against self-incrimination in response to 69 separate allegations of perjury relative to Dr. Day’s case.  In civil law, as opposed to criminal law, taking the Fifth is tantamount to an answer of yes to each question. Accordingly, Patient One's Affidavit is an admission of guilt to all 69 questions propounded to her. 2) In support of her Affidavit are more than 70 subpoena returns and private investigator reports that included evidence that a) she was not where she said she was on the day of the allegation or on the day before the allegation at times that were relevant to the case, and b) she had a pattern of behavior consistent with someone who would fabricate a sexual assault charge. There were three separate instances at three separate restaurants where she claimed that she broke her tooth on a “rock in the food” and two instances of “slip trip or fall” type insurance claims. c) Other findings appear to indicate theft by insurance fraud, theft by check, theft by forgery , theft by credit card, theft by shoplifting , violation of real estate ethical guidelines for financial benefit, a pattern of developing relationships with married professional men for financial gain (including at least two physicians), receiving unemployment benefits while working , obtaining prescriptions from physicians by developing a personal relationship with them, seven prior bodily injury claims, psychiatric care predating her allegation, using an elderly man to file a false affidavit for her benefit, and avoidance of service.

• Patient Two is not credible because 1) she admitted under oath that she returned to Dr. Day for professional care after the alleged molestation, that she was uncertain of the exact date of the alleged event, and her medical record shows nine documented medical visits to see Dr. Day, 2) the medical assistant in the exam room on the date of allegation swore that she was in the room with Patient two and him the entire time and that nothing happened, 3) Patient Two’s alleged phone calls from Dr. Day are not found in the phone records, 4) Patient Two has an excessive number of insurance claims (i.e., 20) including at least one bodily injury claim, 5) Dr. Day’s staff testified that Patient Two was solicitous towards Dr. Day including lewd posturing, refusal of a modesty blanket to cover herself, and a request to have Dr. Day call her when she gave staff a note with her telephone number on it, 6) Patient Two did not file a complaint until February 2011 which was some 19 months after her last visit to see Dr. Day, and then only in response to the crowd behavior emotions evoked by Dr. Day’s televised “perp walk”.

• Patient Three is not credible because 1) she returned to see him on multiple occasions for professional care three years after the alleged digital penetration, 2) she admitted under oath that on dates after the alleged event that she encouraged him to hire her mother and her younger sister, 3) the preserved documentary evidence is inconsistent with her narrative, and 4) she alleged that this event occurred in 1999 but she did not file a complaint until 12 years later in February 2011, and then only in response to the crowd behavior emotions evoked by Dr. Day’s televised “perp walk”.

• Patient Four’s complaint  should be discarded because 1) two board certified dermatologists, after reviewing medical records and testimonies concluded that Dr. Day was not in violation of the medical practice act in this instance but rather that this complaint was a result of Patient Four’s misperceptions. These experts found that Dr. Day’s care of Patient Four was appropriate and within the standard of care. 2) Patient Four was recently deposed on 2.13.2017 and she stated that had Dr. Day touched the mole just once that would have been acceptable but because Dr. Day touched it three times, that that was inappropriate. 3) Patient Four admitted in her deposition that a) she was not forced to remove her clothes but did so of her own volition, b) that she was not forced to have the full body exam but did so of her own volition, c) that she signed a consent form to have the exam, and d) that she had no recollection of making a complaint to police. 4) Patient Four’s two visits to see Dr. Day occurred in 1990 but she did not file a complaint until 21 years later in February 2011, and then only in response to the crowd behavior emotions evoked by Dr. Day’s televised “perp walk”.

• Patient Five’s complaint  should be discarded because 1) two board certified dermatologists, after reviewing medical records and testimonies concluded that Dr. Day was not in violation of the medical practice act in this instance but rather that this complaint was a result of Patient Five’s misperception. These experts found that Dr. Day’s care of Patient Five was appropriate and within the standard of care. 2) Patient Five returned to see him repeatedly over a period of eight years for full body skin examinations so these exams apparently bothered her much less than alleged. 3) For the last six years, Patient 5 has consistently refused to testify in any venue or to participate in legal actions against Dr. Day, even under subpoena. 4) Patient Five alleged that these exams occurred repeatedly from 1993 – 2000  but she did not file a complaint until 11 years later in February 2011, and then only in response to the crowd behavior emotions evoked by Dr. Day’s televised “perp walk”.

• Former Employee Louise Feuge’s complaint is not credible because 1) an expert will testify that the allegations stated by Ms. Feuge could not have occurred without serious bodily injury to Dr. Day. 2) The alleged “locked” door(s) that prevented Ms. Feuge’s escape were not capable of being locked in such a way as to prevent egress and the sworn testimony of multiple staff controverted Ms. Feuge’s locked door claim. Moreover, Dr. Day’s large eleven story office building was owned by Methodist Hospital who had design and construction oversight as well as maintenance responsibilities for all of their doctor’s offices; it is most unbelievable indeed that any of Methodist Hospital’s Doctor’s offices or for that matter any of their rooms would be designed, built, and maintained in such a way that a person could be trapped inside. 3) Feuge’s description of Dr. Day’s genitalia having two golf ball sized congenital bubbles is inconsistent with photographs and inconsistent with the experience of those that Dr. Day was intimate with before, during, and after May 2000.  4) Feuge alleged that this event occurred in May 2000 but she did not file a complaint until 11 years later in February 2011, and then only because of her emotional “mob” (rather than rational) type response to Dr. Day’s televised “perp walk”.

The parallels with the Duke La Crosse case and the Dr. Calvin Day Case are striking. A false allegation of sexual assault, misconduct by the District Attorney’s Office, and unwarranted humiliation and vilification by the press that in turn evoked a mob-like rush to judgement and the presumption of guilt prior to full adjudication. The Dr. Day case had the added twist of police misconduct wherein the detective in charge of the case swore out a false affidavit to obtain an arrest warrant and then used the arrest warrant to create a staged “perp walk” to solicit other complainants to bolster a she-said-he-said case with no DNA evidence, no witnesses, and where Dr. Day had voluntarily taken and passed a polygraph.

A review of Dr. Day’s abbreviated case timeline written below may be helpful.

DR. DAY’S ABBREVIATED CASE TIMELINE

On 8/22/2010, Dr. Day met with Patient One prior to his routine Sunday morning golf game to discuss her proposal to become his personal trainer. He declined her solicitations and advances, and she was displeased by his rebuff.

On 8/31/2010, ten days following their personal trainer-prospective client meeting, she called the police and alleged that during their meeting that Dr. Day had penetrated her sexual organ with his finger(s).

Patient One convinced the Detective in charge that Dr. Day was guilty despite the fact that the case was weak (i.e., she-said-he-said, no DNA, no witnesses, and a polygraph showing that Dr. Day was truthful). Operating under the presumption of guilt, the Detective sought to shore up the case’s weaknesses, and she did so by resorting to misconduct by falsely claiming that Patient One had correctly identified Dr. Day’s genitalia when in fact she had not.

On 1/27/2011 the Detective used this false affidavit to obtain an arrest warrant and then used the arrest warrant to stage a highly televised “perp walk” to manufacture more complainants. The enormous number of Dr. Day’s "at risk" events coupled with public exposure to an audience of approximately 900,000 people, with the added negative images of him being paraded in handcuffs, and the on-camera solicitations portraying him as being guilty, made him vulnerable to false claims. And doctors are particularly vulnerable to additional false claims by the nature of their work (i.e., close proximity with patients in various stages of undress). The “perp walk” was successful in manufacturing additional complainants all of whom were “she-said-he-said”.

On May 11, 2011, Dr. Day was indicted on one count of digital penetration of the sexual organ of Patient One and on one count of digital penetration of the sexual organ of another patient who had made a copycat claim immediately following the “perp walk”.

On June 14, 2011, Dr. Day’s medical license was temporarily suspended by a three member Board panel at a Hearing Without Notice and Dr. Day was notified via fax.

On July 25, 2011, a three member Board panel voted to continue the temporary suspension.

On February 27, 2012 a two member Informal Settlement Conference panel voted to continue the temporary suspension.

On September 7, 2012 TMB filed a formal complaint against Dr. Day at the State Office of Administrative Hearings under SOAH Docket No. 503-11-0053.MD.

On October 3, 2012 the parties filed a joint motion to abate the SOAH case until the criminal matter was resolved.

In May 2013, Patient One twice visited the DA’s office to express her desire to not give testimony in the upcoming June 2013 trial because she feared she had perjured herself in 2011 at the TMB Hearing. The DA declined her request so she sought legal counsel to assist her.

On June 5, 2013, Dr. Day’s criminal trial for the charges pertaining to Patient One began. The District Attorneys apparently believed that Dr. Day’s case was not winnable because on 6/11/2013 they resorted to significant misconduct.  During the trial at a point where it appeared that Dr. Day’s defense would easily win, the Bexar County District Attorney in an apparent purposeful tactical move threatened Dr. Day’s attorneys in open court with a witness tampering investigation.  Dr. Day’s attorneys later testified in the Motion for New Trial Hearing that they purposely lost Dr. Day’s case to avoid a witness tampering investigation and to avert the potential associated felony witness tampering indictment. As a result of the DA misconduct, Dr. Day was denied Dr. Day’s 4^th Amendment right to conflict free counsel and ergo denied the opportunity to hear a “not guilty” verdict; Dr. Day was convicted of one count of digital penetration of Patient One on 6/17/2013.

The “punishment phase” of Dr. Day’s trial ensued wherein the jury heard nine days of testimonies and this included the testimonies of those complainants who emerged subsequent to Dr. Day’s “perp walk”. At the end of those nine days, Dr. Day was sentenced to community service rather than prison because the testimonies of these secondary complainants that emerged after his “perp walk” were not credible. These same complainants who the jury found not to be credible are the very same ones that are causing further delay of the re-instatement of Dr. Day’s medical license. The Board members should be given the transcripts of the cross examination of these particular complainants because they reinforce the absurdity of continuing the case against Dr. Day.

One hour after sentencing on 6/26/2013, Dr. Day’s son Zachary committed suicide by stepping in front of an 18 wheeler.

Two months later, on 8/26/2013 at the Hearing on the Motion for a New Trial Judge Ron Rangel granted the Motion for New Trial “in the interest of justice”. The judge’s ruling overturned and nullified Dr. Day’s conviction as well as any and all rulings and findings in the first trial. Dr. Day was once again presumed innocent.

While awaiting Dr. Day’s new trial Dr. Day’s attorney issued some 70 subpoenas, and the resultant discovery revealed Patient One’s criminal and other questionable behavior for financial gain described above. Some of the subpoena returns showed that Patient One had committed perjury in the first trial.

The re-trial was finally set for 11/30/2015, and Patient One, upon learning about the new evidence in the subpoenas refused to testify. To save face and to prevent criminal action from being taken against her for perjury, Patient One, who was still within the statute of limitations for her 2013 trial perjury, blamed not wanting to re-testify on the District attorney and her misconduct.

On 12/16/2015, the judge signed an Order Application for Writ of Habeas Corpus in which he officially found that the DA and her two assistants had engaged in prosecution misconduct during Dr. Day’s 2013 trial.

On 12/18/2015, the Special Prosecutor, who was also aware of the content of the 70+ subpoenas, showing evidence of Patient One’s perjuries and criminal activity, dismissed the charges.

On 02/12/2016, the Special Prosecutor dismissed the sexual assault charge against him concerning Patient Two for the same reasons as for Patient One, namely that discovery and Private Investigators found evidence of apparent criminal activity and also found that Patient Two had perjured herself in Dr. Day’s 2013 trial. Patient Two, like Patient One refused to testify.

On 6/27/2016, an Administrative Law Judge lifted the abatement of the medical board case with SOAH that had been in place 10/3/2012 and ordered Mediation.

On 8/19/2016, Mediation was attempted and failed.

On 10/03/2016 Board Certified Dermatologist Dr. Gregory Thompson filed an affidavit stating that Dr. Day’s actions with regard to Patient 4 were within the standard of care and that Patient Four’s complaint was in and of itself, not a violation of the Medical Practice Act. Her complaint was a result of a misperception. The Board attorneys have not designated an expert who in all likelihood would have concurred with Dr. Thompson’s conclusions and the deadline to designate experts has now passed.

Board Certified Dermatologist Dr. Arthur Rhodes, who was Dr. Day’s mentor at Harvard, filed a similar affidavit with regard to Patient Five on 02/15/2012.

On 10/04/2016, Dr. Rhodes swore out a second affidavit applicable to both Patient Four and Patient Five in which he expounded and explained the medical necessity of full body skin exams.  The Board attorneys have not designated an expert who in all likelihood would have concurred with Dr. Rhodes’ 2012 and 2016 affidavits, and the deadline to designate experts has now passed.

On 12/19/2016, Patient One refused to appear at her own deposition.  Instead, she submitted an affidavit invoking her Fifth Amendment Right against self-incrimination in response to 69 separate allegations of perjury relative to Dr. Day’s case.  In civil law, as opposed to criminal law, taking the Fifth is tantamount to an answer of yes to each question. Accordingly, Patient One's Affidavit is an admission of guilt to all 69 questions propounded to her.

On January 16-18 & 23-25, 2017, Dr. Day underwent a multiple day evaluation by renown psychiatrist and former California Board member and former Texas Medical Board District Review Committee member Dr. David Alxelrad, and was declared mentally fit to return to practice.

On February 13, 2017 Patient Four was deposed and she controverted in her sworn testimony the Board complaint that had been filed with SOAH. The sum of her complaint was that if Dr. Day had touched her mole just once, then she would not have filed a complaint, but because Dr. Day touched her mole three times, she felt that that was inappropriate.

On February 14-16, 2017, Dr. Day underwent a second psychiatric evaluation at the Board’s request, designation, and expense, and was again determined to be fit to return to practice.

On February 17, 2017, Patient Two refused to appear at her own deposition.  Instead, she telephoned the Board attorney at the start of the scheduled and agreed to deposition and stated that she refused to appear and indicated she felt she needed to have her own attorney.

The current status of the six Board complainants against Dr. Day as of 2/25/2017 is as follows:

Patient One – Refused to appear at her deposition and submitted an affidavit invoking the 5^th to 69 allegations of perjury.

Patient Two -- Refused to appear at her deposition but telephoned and expressed a concern that she may need to have her own attorney.

Patient Three – Refused to answer all telephone calls and certified mail.

Patient Four – Was deposed and disavowed statements in the Board’s complaint. Two experts have filed affidavits stating that her complaint was not a violation of the Medical Practice Act.

Patient Five -- Refused to answer all telephone calls and certified mail. She has not responded since 2011 when she ignored the Medial Board’s subpoena to appear to testify. Two experts have filed affidavits stating that her complaint was not a violation of the Medical Practice Act.

Former Employee Louise Feuge –Ms. Feuge's deposition which is yet to be scheduled will include queries concerning 1) the doors which have now been verified to have been be “unlockable”[4] in 2000 and all other years, 2) Dr. Day’s alleged congenital penis deformity which was only visible to Feuge 3) Feuge’s allegation of voluntarily carrying out a medical procedure that if true would have caused great tissue damage and harm to her patient (in violation of Nursing Board rules), 4) the absence of documentation in the records of patients that Feuge alleged that she treated on 5/13/2000 (in violation of Nursing Board rules), and 5) other relevant matters that appear to indicate Feuge’s lack of credibility.